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Evasions of the Civil Service Law through 
Constructions placed on Special Legisla¬ 
tion ; Growth of the Practice. 


A REPORT 


PREPARED BY THE 

INVESTIGATING COMMITTEE 

OF THE 

National Civil-Service Reform League. 


1901 . 






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Evasions of the Civil Service Law through 
Constructions placed on Special Legisla¬ 
tion ; Growth of the Practice. 


A REPORT. 


To THE Council of the National Civil Service Reform League : 

Your special committee, appointed to enquire into the con¬ 
dition of the Federal Civil Service, begs leave to offer the fol¬ 
lowing report in regard to certain appointments made without 
examination: 

The civil service rules defining the classified service are 
so framed as to apply to new positions, when these are created, 
of the same general description as those already included. 
Such positions, whether established under Executive authority 
or created by Congress, fall naturally under the appropriate 
classified division, except where Congress by express legisla¬ 
tion, provides otherwise. 

The employees of the Census Bureau and the two thousand 
or more clerks employed under the War “ emergency” acts, 
were thus excluded, and are not within the scope of this report. 

A large number of positions have, however, been created 
by recent legislation, where there was no express exclusion, 
but where some ambiguity, or difference from the usual form 
in the language of appropriation bills, providing for salaries 
or other compensation, has been construed by appointing 
officers to amount to an exclusion. 

Large and important classes have been so treated, the only 
reason alleged being that under the terms of particular acts 
the Department officer has been authorized to “ select ”, or to 
“employ”, rather than to “appoint”; though it is difficult to 
believe that in such cases these words are used in any other 
than their synonymous sense. 




4 


The construction, under which such exemptions occur, so 
far as we can learn, are, in most cases, purely arbitrary. The 
number of exemptions made under them is growing, and it 
would appear that a new means for successfully circumvent* 
ing the civil service law has been discovered, the development 
of which, unless checked by the President and heads of De¬ 
partments—who very clearly have the power to check it—will 
result very unfortunately. A number of examples are here 
given; 

THE RURAL FREE DELIVERY SERVICE. 

I.—All appointments in the Rural Free Delivery Service 
are made without examination for the reason that in the ap¬ 
propriation act that service was spoken of as “ Experimental ”. 
In a debate in Congress Mr. Loud, the chairman of the House 
Committee on Post-offices and Post Roads, stated that the 
use of this word placed the office outside the classified service. 
This claim could not, however, be rightly based merely on the 
ground that the service, at the outset, was to be temporary, as 
Mr. Loud meant to imply. Appointments that are tempo¬ 
rary—a description that in this case would certainly seem to be 
synonymous with “ experimental ”—are subject to the same 
general provisions of the Civil Service rules as those that are 
permanent. But, however that may be, it is evident that the 
time is now past when this branch of the service can be con¬ 
sidered experimental. In the words of the First Assistant 
Postmaster-General (P. M. General’s Report, Nov. 3, 1900, 

P' 113): 

“The service popularly] known as ‘Rural Free Delivery’ must 
hereafter be considered by the Department and provided for by Congress 
\as a permanent and expanding feature of the postal administration.’' 

\ There is certainly nothing in the special act which would 
Vevent the President from now classifying this service by 
Vcutive order. It is possible that the rural carriers could 
not be conveniently included, since their work is not always 
continuous and is frequently done in connection with some 
private employment—a carrier, for instance, furnishing the 
facilities for the conveyance of the mails in connection with 
some business of his own. But the Post Office Department 
has appointed a large number of special agents in this service 
who perform continuous administrative and clerical work, and 
who could easily be classified. In all the large cities there 


5 

are numbers of these special agents, about forty being so em¬ 
ployed in Washington alone. It is submitted that these places 
should be made subject to future competitive examination, 
and that this would be of great advantage to the service. 

THE FOREST RESERVE EMPLOYEES. 

II.—By an act passed June 4, 1897, Congress created the 
“ Forest Reserve Bureau ” to be charged, under the direction 
of the Secretary of the Interior, with the care and administra¬ 
tion of the National forest reserves, and on July i, 1898, an 
appropriation of $175,000 was made to cover the employment 
of thej necessary superintendents, inspectors, surveyors, for¬ 
estry agents, rangers, etc. The appropriation act, in this case, 
provided merely that these employees should be ^^appointed'' 
by the Secretary of the Interior, and “ wholly with reference 
to their fitness and without regard for their political affilia¬ 
tions There was nothing in this language to interfere with 
appointments under the civil service law; rather the reverse. 
It is understood, however, that Mr, Bliss, who was then Sec¬ 
retary, claimed the rules did not apply for the reason that none 
of the general provisions defining the classified service exactly 
fitted these particular positions. The Civil Service Commis¬ 
sion held the other view and so stated in a letter addressed to 
the Secretary on July 29, 1898, asking his authority for the 
appointments without examination that had already been 
made, and for the names of the appointees. This letter the 
Secretary did not answer. The Commission still holds its 
view but the “Forest Reserve Bureau” has been treated as 
entirely unclassified. The number of employees, meanwhile, 
has grown, the annual appropriations for their salaries, 
which were again $175,000 in 1898, having been increased to 
$335,000 in 1900, and $325,000 in 1901. How far the De¬ 
partment has been able to make its selections, in the absence 
of protective rules, “ with reference to fitness wholly, and with¬ 
out regard for political affiliations ” your Committee is unable 
to say. If, however, there be a doubt as to whether these 
positions are embraced by the present rules within the classified 
service, there can be no question whatever, that they ought 
speedily to be incorporated within this service. To subject 
such places permanently to the usual methods of arbitrary 
appointment, permitting their use as party spoil, would result 
in the degradation of the service to such an extent as to nullify 


6 


the forest reserve policy of the government. The Bureau can 
easily be classified by an order of the President, with the 
approval of the Secretary of the Interior. 

APPOINTMENTS BY MR. HEATH. 

III. —In the report to the Commission of changes in the 
Post Office Department, for the month of June, 1899, there 
appeared the names of twenty-four persons as “ temporary 
clerks in the office of the First Assistant Postmaster-General”. 
These clerks, whose tenure it may be remarked, has become 
virtually permanent, were appointed without the required ex¬ 
aminations. The act providing for them referred merely to 
“the employment during the nine months beginning July i, 
1899, of such additional temporary force .... necessary to 
the prompt, efficient and accurate despatch of the business in 
the office of the First Assistant.” There was nothing in it 
denying this employment to those on the eligible lists of the 
Commission, who had qualified for it and who were entitled to 
it. The Commission informed the First Assistant, Mr. Perry 
Heath, that his appointments were illegal and should be dis¬ 
continued. No reply was made to this letter, and Mr. Heath’s 
appointees remained undisturbed. In the provision for their 
continuance for another year, contained in the appropriation 
act of April 17, 1900, they were described as “rendered 
necessary because of increase of work incident to the war with 
Spain.” As all appointments so described had been exempted 
by Congress from the operation of the Civil Service act, they 
were by virtue of this enactment nominally validated from that 
time forward. In the act of March 3, 1901, provision was 
made for their continuance for the current year. 

STOCKMEN AT THE INDIAN AGENCIES. 

IV. —In the Interior Department, the act making appro¬ 
priations for the year ending June 30, 1902, contains the fol¬ 
lowing clause: 

“To enable the Secretary of the Interior to employ practical farm¬ 
ers. and practical stockmen, subject only to such examination as to 
qualification as the Secretary of the Interior may prescribe, in addition 
to the Agency farmers now employed, at wages not exceeding $65.00 
per month, to superintend and direct farming and stock-raising among 
such Indians as are making effort for self-support, sixty-five thousand 
dollars.” 

The appointments of farmers and stockmen since the 


7 

passage of this act have been made without examination. 
As the act expressly refers to tests prescribed by the Secretary 
of the Interior alone, it is probable that it permits this to be 
done, but the situation is unfortunate, since about twenty per¬ 
sons were appointed as farmers and stockmen prior to the act, 
by competitive examination. To have two sets of men doing 
the same work, appointed in two different ways, seems not 
only illogical, but calculated to imperil the classified part of 
this service. It is submitted that the President, with the con¬ 
currence of the Secretary of the Interior, may very properly 
establish a rule for the uniform examination of all these farm¬ 
ers and stockmen by the examiners of the Civil Service Com¬ 
mission ; or that the Secretary, having the right to prescribe 
any examinations he sees fit, may himself accept those of the 
Civil Service Commission. 

On the loth day of June, the above cases were brought to 
the notice of the President, in a communication addressed to 
him by the Chairman of your Committee, and he was respect¬ 
fully urged to include each and all of them within the classi¬ 
fied service, through specific executive orders. 

EVASIONS OF THE RULES ON VARIOUS OTHER PRETEXTS. 

Further cases that have come to your Committee’s knowl¬ 
edge include the following: 

V.—The Deficiency Bill of March 3, 1899, made an ap¬ 
propriation of $15,000 for the reproduction, under the direction 
of the Commissioner of the General Land Office, of official 
plats of United States surveys, diagrams and correspondence, 
constituting the files of the office of the register of the General 
Land Office at Bismarck, N. D., which were destroyed by fire 
in August, 1896. The force of copyists, numbering fourteen, 
was employed without reference to the Civil Service law. Their 
employment was continued beyond the year appropriated for, 
further provision being made for it in the act of February 9, 
1900. In this case it is the understanding that the Depart¬ 
ment contends that the language of the act Implied that the 
work was of the “ emergency” order, and not subject to the 
rules, and it seems that the copyists are carried on the rolls 
nominally as “laborers”. Those on the eligible lists who 
might be selected are thus debarred. It appears that the pro¬ 
visions recently made by Congress for clerical work, in the 
reproduction of records of the Land Office have been construed 


8 

in the same way in nine other cases, the appropriations in these 
cases aggregating $47,000. 

VI.—In establishing the new reference library in the 
Government Printing Office, Congress provided that the libra¬ 
rian, or as the act reads, “ the person or persons who shall have 
charge of such library should be “ selected and appointed 
by the Public Printer”. This the Public Printer construed as 
an exemption and examinations for appointment were not 
held. 

In a letter of the Civil Service Commission to the Attor¬ 
ney-General, dated March 9, 1901, it is pointed out that all 
clerks of United States District Attorneys have been appointed 
without examination, although the rules except “not to exceed 
one private Secretary or Confidential clerk ” to each of these 
officers. There are at least five who have two clerks and one 
who has five, all of whom were appointed without compliance 
with the law. The Attorney-General, in reply, refers to 
an act of May, 1887, authorizing District Attorneys to em¬ 
ploy .... the necessary clerical assistants, etc.” Under a 
construction followed by the office, he states the persons so 
“employed” are not considered as “appointed”, within the 
meaning of the civil service rules. The Commission did not 
feel that it could do otherwise than accept the Department’s 
decision, and the exemption stands. 

In the act of July i, 1898, $2,000 was appropriated “for 
temporary typewriters and stenographers in the Department 
of State”, “to be selected by the Secretary”. These appoint¬ 
ments were made without examination, though it does not 
appear that they were treated at the outset as positively ex¬ 
cepted. One of the appointees, Mrs. Caroline Galbreath, 
sought to obtain a permanent appointment by taking the type¬ 
writing examinations of the Commission in September, 1899, 
but she failed to pass. Application was then made, to the 
Commission, for permission to retain her permanently under 
the clause of the President’s order of May, 1899, continuing 
temporary employees holding positions on that date. The 
Commission declined to issue a certificate on the ground that 
the clause in question referred only to those who had been 
temporarily appointed under the rules, and in the absence of 
an eligible list. An adequate list existed when Mrs. Galbreath 
was put to work. - When the question was referred to Attorney- 
General Griggs, he gave an opinion to the effect that a certi- 


9 

ficate should not be issued under the circumstances, but that 
as the act authorized the Secretary of State to “select” and 
not to “appoint”, none of the rules applied, and the personal 
appointment might be continued. Your Committee believes 
that this opinion is essentially in error, and that even if there 
were a difference in the terms used, the opportunity for an 
appointing officer to “select” is fully afforded when, as the 
rules provide, three names are certified, from among which his 
choice may be made. So far as its effect on the case of Mrs. 
Galbreath is concerned, however, the opinion governs until 
set aside by some competent authority. This employee, with 
others, has been continued from year to year under further 
appropriations, made in the same language, passed February 
24, 1899; February 9, 1900; and March 3, 1901. 

Your Committee submit that if the practice of securing 
exemptions by the methods described in this report should not 
be checked by Congress or by the President, it will be possible 
for the opponents of the merit system to bring about a gradual 
nullification' of the Civil Service act, without incurring the 
odium of directly attacking it. It is true that, in the absence 
of direct legislative prohibition, executive officers might accept 
the rules and employ the machinery of the Civil Service Com¬ 
mission in making appointments—and that they should do 
so. But the cases referred to seem to show that their action 
is more apt to be in favor of the law’s opponents whenever 
the latter make the terms of the appropriation bills literally 
different, although really synonymous with those of the Civil 
Service act. The action of the President in this regard—and 
upon the cases already submitted to him as herein stated—is 
awaited with much interest. 

Respectfully Submitted, 

William Dudley Foulke, 
Richard Henry Dana, 
William A. Aiken, 

Charles Richardson, 
George McAneny. 




































































LIBRARY OF CONGRESS 

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